Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Middleton Street Drain 2001 Township of Zorra
Middleton Street Drain 2001 (RE) 2001 ONAFRAAT 51
STATUTE: Drainage Act
HEARING: September 27, 2001
DATE OF DECISION: November 2, 2001
2001-51
NEUTRAL CITATION: 2001 ONAFRAAT 51
Middleton Street Drain 2001 Township of Zorra
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal Peter Hutchison, Thamesford, ON under Sections 45, 48 and 65 of the Drainage Act (the Act) and Stuart Gomes, Thamesford, ON under Sections 48 and 65 of the Drainage Act from the Engineer’s Report by Spriet Associates London Limited (the Engineer) on the Middleton Street Drain 2001, dated February 21, 2001 (the Report) in the Township of Zorra.
Before: Jack Young, Vice Chair; John Taylor, Vice Chair; Mary Field, Member.
Appearances: Mike DeVos, P. Eng. The engineer who prepared the report. Peter Hutchison, appellant. Stuart Gomes, appellant. George Bartlett, for Westview Church, assessed landowner. Ray Eton, witness for appellants. Bob Kordyban assessed landowner. Laurie Goldhawk, witness for the appellants.
DECISION OF THE TRIBUNAL
This appeal was heard in Ingersoll, Ontario on September 27th 2001. Peter Hutchison appealed to the Tribunal under Sections 45, 48 and 65 of the Drainage Act and Stuart Gomes appealed to the Tribunal under Sections 48 and 65 of the Drainage Act from the Engineers Report of February 21, 2001 for the Middleton Street Drain 2001.
Don MacLeod, Clerk, Township of Zorra, performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Section 48 of the Act states:
48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.
48(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, chap. D.17, s. 48.
Section 65 of the Act deals with division of assessments after the final bylaw has been passed, As such the appeals under Section 65 by Peter Hutchison and Stuart Gimes which may have been meant to be assessment appeals are not applicable under this section.
Section 54 deals with appeals from the Court of Revision.
Section 54 of the Act states:
54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.
54(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.
54(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, chap. D17, s. 54.
Section 45 of the Act deals the adoption of the engineers report as a provisional by-law; the appeal of Peter Hutchison under this Section is not applicable to this hearing.
The Background
The engineer’s report by Spriet Associtates, for Middleton Street Drain 2001 was initiated by the Road Authority for the Township of Zorra, and accepted by a motion of the Township Council. The Township of Zorra is planning to reconstruct Middleton St. and had requested the necessary drainage for storm water to protect the new works.
Mike DeVos P.Eng of Spriet Associates presented some background to the Tribunal. He explained that the storm water management plan was designed to include the possible future residential development on the east side of Middleton Street and on the south end of the street, below Seldon Street, an area known as the Sloan property.
He told the Tribunal that the plans for the sewage and the storm water management system were in accordance with the requirements of the Ministry of Environment (MOE). He explained to the Tribunal, that a Certificate of Approval must be obtained from the MOE for any proposed municipal and private water and sewage works. He said that the Middleton Street Drain 2001, was planned in accordance with the stormwater management plan for the village of Thamesford and the guidelines as published by the MOE.
The report for the proposed works by Spriet Associates would drain a watershed of 31.4 hectares. The works were planned to include:
Underground pipes fed by gutters, manholes and catch basins, which would collect the water and carry it to an outlet.
The construction of a storm water management facility to remove solids and contaminants from the run-off.
A north drain section, on the west side of Middleton Street, starting at Dundas Street running south to Brock Street and consisting of 300mm diameter pipe.
A main drain section, on the east side of Middleton Street, starting just north of the pollution control plant running south to the outlet in a storm water management facility and consisting of 300 mm to 600 mm diameter pipes.
A south drain section, on the east side of Middleton Street, running south to the proposed Sloan Drive and consisting of 525 mm diameter pipe.
The construction of 141 meters of 375 and 450 mm diameter pipes along the proposed Sloan Drive to be incorporated as part of the south drain.
An outlet drain, consisting of 825 mm diameter pipe from the outlets of the main and south drains, running east to a storm water management facility.
Mr. DeVos said that the Township requested that property at the southern end of the proposed works be included in the plan so that a structure would be in place to service any future development. Mr. DeVos told the Tribunal that some residents of Middleton Street objected to having a private drain connection (PDC), as they felt that, the benefit of the connections did not warrant their cost. Mr. DeVos said that an Addendum Report dated August 21, 2001, was provided, wherein the assessment schedules were revised to reflect the assessments for the residents who would not have the PDC’s installed on their properties.
The Issue
The issues before the Tribunal are:
Is the benefit to be derived from constructing the drain commensurate the cost of the works?
Are the assessments as proposed in the Report and upheld by the Court of Revision, appropriate?
Are the assessments as proposed in the engineer’s report by Spriet Associates, applied fairly to all properties benefiting from the works?
The Evidence and the Findings
Peter Hutchison
Mr. Peter Hutchison stated that he lived on the corner of Elizabeth and Middleton Streets. He said that Thamesford has excellent natural drainage, and Middleton Street has existed for 25 to 30 years without storm sewers. He said that he does not have a drainage problem and thinks it is unfair that he be assessed for a system from which he derives no benefit. Mr. Hutchison stated that:
The proposed storm water management ponds would attract mosquitoes, which, given the proximity to a senior citizens facility and residential areas with children, could pose a health threat with regard to the West Nile Virus.
A property within the watershed had not been assessed, and this should be corrected.
The Township purchased property from Cold Springs Farm to be used in the construction of the drainage works. He proposed that, in lieu of purchasing the property, the land donation by the developer could be used for the works.
The new drain and sewage works was being constructed to serve the proposed future development and it was not fair that current Middleton Street residents should have to pay for it.
He did not receive a decision regarding his appeal to the Court of Revision.
The drain and sewage works will not be used by the majority of the assessed properties.
Mr. Hutchison said in response to questions that:
The senior citizens to whom he referred, when he stated the retention pond could harbour disease carrying mosquitoes, would be living in a proposed development on the property presently known as the Sloan property.
The children to whom he referred, would be living in the proposed residential area on the Cold Springs Farm property.
He was present at a meeting where a representative from the MOE explained the necessity of the storm water management ponds.
He requested at that meeting, that residents who did not want a PDC should be able to avoid the installation and assessment.
He believes that the run-off water is presently being absorbed by the ground.
The property at the intersection of Brock and Middleton Streets S.E. is not assessed for the works and he had asked the court of Revision to assess it.
The Court of Revision did not address his appeal and the decision was put off for the Tribunal to decide.
He would be willing to be assessed for use of the drain at such time as he was connected to it and deriving benefit, but, at present he did not believe that water was running from his property onto Middleton Street.
Stuart Gomes
Stuart Gomes presented evidence before the Tribunal. He stated that:
The Court of Revision did not render a decision regarding his assessment appeal.
Middleton Street has excellent natural drainage and the benefit assessment is excessive.
The map of the area supplied by Spriet Associates did not include the dry wells that were installed when Middleton Street was first developed.
There are two dry wells on his property and one on the road allowance in front of his house.
The dry wells are approximately 8 feet deep by 4 feet in diameter.
His property is graded to drain most of the water to the dry well in the backyard.
Property across Middleton Street from his property, is graded to drain water towards the road allowance. A concrete fence that he believed has footings below the surface, provides a barrier to force water to drain only toward the road allowance.
The proposed drainage and sanitary sewer works is intended to serve future development and it is unfair that the Middleton Street residents must be assessed for the works.
The plan for the proposed works does not provide for ground water recharging.
Mr. Gomes presented a video-tape of Middleton Street that filmed the area across the street from his property which is owned by Cold Springs Farm. He responded to questions that:
He did not know that Mr. DeVos was aware of the existing dry wells within the watershed.
He did not know what the MOE would consider to be an area of approved drainage.
The Cold Springs Farm property west of the concrete wall slopes toward Middleton St. therefore the water drains toward Middleton Street.
If Cold Springs Farm is to be excluded from benefit assessment because its water drains toward the Thames River, then by the same logic his dry wells drain his water and he should not be assessed benefit.
The watershed for the Humphrey Drain 1983 drains westwardly away from Middleton Street.
He was not aware of an overlap of the watersheds of the Humphrey Drain 1983 and the proposed Middleton Street Drain.
The dry wells on his property are seven to eight feet deep with no gravel in them.
George Bartlett
Mr. George Bartlett indicated that he represented Westview Church on Brock Street. The church was assessed on the main drain. Mr. Bartlett told the Tribunal that he hoped that its decision would be satisfactory to all and he thanked the Tribunal and interested parties for attending the hearing.
Ray Eaton
Mr. Ray Eaton, a witness for the appellants told the Tribunal that he believes the Township should give appellants more guidance in making appeals and that the council should have taken more responsibility for addressing the appellants’ concerns. Mr. Eaton said that he thinks that the proposed works will benefit the developers of the vacant land rather than the present residents.
Bob Kordyban
Mr. Bob Kordyban an assessed landowner said he resides on Pamela Court provided testimony to the Tribunal. Mr. Kordyban presented a schematic to the Tribunal showing some dry wells and gradients on Middleton Street. He told the Tribunal that:
The cost of the proposed works was excessive as the present natural drainage and dry wells worked very well.
The lowest point of Middleton Street is 1.2 meters below Dundas Street, which crosses Middleton Street at its most northern point and is the boundary for the watershed.
Middleton Street has very little inclination overall.
He proposed that Seldon Street should be the boundary line for two watersheds and that any property north of Seldon Street should be drained northward and connect into the Thamesford Drain which outlets into the Thames River.
He proposed that any property south of Seldon Street should be drained to the south and outlet into a storm water management pond.
Mr. Kordyban responded to questions that:
He was assessed on the Humphrey Drain 1983 as well as the Middleton Street Drain 2001, as his property straddles both watersheds.
His property drains to the south and into parkland, the trees in the park absorb all the water very quickly.
His professional background is that of a chemical technologist and Certified Packaging Engineer.
He believed that installing more dry wells could capacitate any additional run off from an expansion of Middleton Street.
Laurie Goldhawk
Ms. Laurie Goldhawk told the Tribunal that she does not own property that is assessed for the new works, but that she is a town councillor. Ms. Goldhawk told the Tribunal that:
She does not believe that the assessments are based on consistently applied criteria.
The property east of Seldon Street should have been assessed for the new works, as a subdivision is planned. It will border the Cold Springs Farm plant on the east side of lot 159.
Her constituents had difficulty understanding the Drainage Act and the calculations for benefit assessment.
Storm Water Retention Ponds have been proposed as part of the drainage scheme for future developments.
Mike Devos
Mr. Mike DeVos introduced into evidence a letter from the MOE stating that the existing dry wells do not constitute an approved drainage works, therefore, new works were necessary. The letter reiterated the policy of MOE that new drainage works must include a storm water management system. Mr. DeVos explained that the MOE requirements necessitated the extensive drainage works. Regarding the assessments he explained that:
A representative from the MOE had come to one of the meetings to explain the policies regarding ground water.
Elevations taken on Middleton Street indicate that swales run along the east and west sides of the street.
The area to the east of Middleton Street at Seldon Street is scheduled to be developed as light industrial. It will be serviced by a storm sewer running eastward and outletting into a separate holding pond.
Elevations taken near the Gomes property indicate that it would be ideal for groundwater recharging.
In the Conceptual Storm Water Management Plan, the Township indicated that surface water infiltration was not desirable lest road salts contaminate wells; the Township favoured curb and gutter systems over swales.
It would be physically impossible to drain water northward on Middleton Street.
Mr. DeVos referred to an aerial photograph of the watershed in the Conceptual Storm Water Management Plan. He said it indicates that in the Humphrey Drain 1983 watershed, the water flows west and south. He said that in the Middleton Street watershed, water flows east and south. He said that he had conducted field studies to confirm this. Mr. DeVos told the Tribunal that the proposed works could handle the flow from storm sewers in future subdivisions. He said that the Sloan property at blocks # 69 and #70 was to be developed and they was included in the outlet assessment on the south drain but not for the main drain. Mr. Devos told the Tribunal that preliminary design costs and assessment were presented to the community at a meeting of assessed property owners and interested parties. He said that:
The west end of Brock Street, which intersects Middleton Street north, drains into the Thamesford Drain.
The stormwater management pond was first suggested in the Township’s Conceptual Storm Water Management Plan and adopted in the engineer’s report by Spriet Associates for the Middleton Street Drain 2001.
The Conceptual Storm Water Management Plan was reviewed by the MOE and the Township and deemed to be satisfactory.
The size of the pipes for the proposed works is consistent with a two year return storm and is standard for the type of residential area the system will serve.
There was never an intention to directly connect the PDC’s.
The authority to assess the Township for routing the new works around the Township’s existing sewer utility is provided for in the Act.
An adjustment in the outlet benefit was made for properties with dry wells.
The road and the arena did not have proper outlets so they were assessed outlet benefit accordingly.
The run-off co-efficient used for the residential area is 0.35, Middleton Street 2.6 and other roads 2.3.
The park on the north side of Seldon Street does not have a driveway, patio or roofs, therefore, it has the lowest run off co-efficient.
80% of the cost of the main drain was assessed as benefit: within this 80%, a further split of 90% benefit was assessed to Middleton Street and 10% to the residential properties.
The 10% benefit assessment to the residences on Middleton Street was based on the frontage. This was adjusted from $690.00 to $575.00.
The Middleton Street residences that did not choose to install the PDC’s had benefit assessments adjusted to $375.00.
The benefit assessment to the properties on Seldon Street was also based on frontage.
For the areas not included in the watershed, a cut off benefit of 20% was assessed, as the properties would not be encumbered by the presence of the drain.
The Cold Springs Farm property was assessed for cost of construction in the original report, from its northern most point at Brock Street and continuing south along Middleton Street. It was not assessed for benefit. It was assessed for cut off benefit. As a result of the decision of the Court of Revision it was assessed for benefit for future development.
The Cold Springs Farm property has an existing drainage system that outlets into the Thames River.
The number of PDC installations would has no bearing on the diameter of pipe to be used in the construction of the main drain.
In response to questions Mr. DeVos said that the drain was designed to best serve, the new road works. He explained that:
Some residents had complained of water ponding and he had seen water ponding on Middleton Street.
He did not believe the water from the Cold Springs Farm plant was flowing onto Middleton Street.
The strip of property lying on the east side of Middleton Street and bordered by a concrete wall did drain toward the road, this strip of property was the road allowance and not the property of Cold Springs Farm.
The Gomes front yard had more slope than the road allowance.
He agreed with the elevations of Middleton Street as presented by Bob Kourtyban.
The proposed retention ponds would be lined with clay, a standard practice to reduce the risk of ground water contamination.
The drain was designed to accommodate water from possible future developments.
He had not seen the internal drainage system at Cold Springs Farm.
SUMMATIONS
Peter Hutchison
In summation of his appeal Mr. Hutchison told the Tribunal that the Township could have been more helpful in addressing the concerns of the property owners. He said he wanted to be exempt from being assessed on the proposed works until such time as he was receiving benefit from his assessment. At the same time, the Cold Springs Farm property should be assessed benefit. He said he wanted no more than one water retention pond to be constructed and he was against the construction of a sanitary sewer.
Stuart Gomes
Mr. Gomes told the Tribunal that the summation of his appeal is contained in his appellant statement he said he would like:
The Township to recognize and approve the existing drainage system.
No levy of assessment for benefit to existing residential properties.
The Township to direct that all costs for the drain be borne by the owners of the properties deriving benefit and the initiator of the works.
That there be no optional installation of PDC’s.
The recommendations of the original engineer’s report regarding ground water recharging be implemented.
Properties on the west side of Middleton Street be exempt from assessment but properties on the east side of Middleton Street be assessed.
The Township to inform residents in writing of any assessment for proposed works and to inform the assessed parties of their rights to appeal the assessments.
Mr. Gomes said that the amount of the assessment is not an issue but he feels that it is unfair that he is assessed at all. He said he wanted to be left alone and that he wanted the Tribunal to order the release of the plans for Andron Estates the present subdivision.
In summation Mr. DeVos submitted to the Tribunal that:
The residents on the west side of Middleton Street will be getting some benefit from the proposed works.
The report and assessments took into consideration the parties who requested the drainage works and would benefit most from the drain.
The assessments were adjusted to reflect the type of property being drained and the possibility of future storm sewers being connected.
The assessments were adjusted for the optional PDC installation.
The proposed works are designed with due consideration given to MOE guidelines and the provisions of the Drainage Act.
The Findings
The Tribunal accepts that the area defined as the watershed for the Middleton Drain 2001 includes some of the area within the watershed outlined in the Humphrey Drain 1983.
The Tribunal understands that natural drainage and a series of dry wells, in the Middleton Street watershed provide good drainage to the street and the subdivision at present. However, storm water sewers and sanitary sewers will become an actuality as all plans for new works must include the environmental safeguards as outlined in the policies of the MOE.
The Tribunal finds that due to its compliance with the environmental policies, the works as planned will be well placed to meet the needs of future developments and connections. In this eventuality, the amounts of assessment may bear out the benefits.
The Tribunal recognizes that the storm sewers in the proposed drain may take ground water away from the wells but it is beyond the jurisdiction of the Tribunal to address this.
The Tribunal finds that, while the appellants did not specifically appeal their assessments under Section 54, their intention was to do so when they made an appeal under Section 65. There was some irregularity in the notification of the appellants of the decision of the Court of Revision. However, the Tribunal feels that they have addressed the concerns of the appellants with respect to appeals under Section 54 of the Act.
There was considerable conflicting evidence presented regarding the direction of water flow from the property lying on the east side of Middleton Street, bordered by Brock Street in the north and by the proposed extension of Seldon Street in the south. Evidence was also submitted regarding the exclusion from assessment of part of this property.
The Tribunal considered the close proximity of this property to the drain and the possibility of water entering the works from it. The Tribunal considered the evidence with respect to the parcel of land at the south east corner of Middleton St and Brock St designated as Block 2 on a plan of subdivision and after consultation with the engineer and property owners representative it was agreed that this property should be connected to and assessed on the Middleton Street Drain 2001 project.
DECISION AND REASONS
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
that the appeals of Peter Hutchison and Stuart Gomes under Section 54 of the Act be partially granted as in items 2 and 3 below and the appeals under Section 48 of the Act be dismissed.
That the Outlet Assessments on property 10-010-086 (Coldstream Farms) on the east side of Middleton Street be increased by $2,300 on the Main Drain and by $2,600 on the Outlet Drain & Storm Water Management Pond and that the Outlet Assessments on the existing residential properties be reduced pro rata to total these amounts on each of the Main Drain and the Outlet Drain & Storm Water Management Pond assessment schedules as contained in Schedule ‘C’, Revised August 21, 2001.
That on property 10-010-086 (Coldstream Farms) on the east side of Middleton Street the Benefit Assessment be increased by $3,000 on the Main Drain and that the Outlet Assessments be increased by $1,400 on the Main Drain and by $900 on the Outlet Drain & Storm Water Management Pond and that the Outlet Assessments on the existing residential properties be reduced pro rata to total of $4,400 the Main Drain and $900 on the Outlet Drain & Storm Water Management Pond assessment schedules as contained in Schedule ‘C’, Revised August 21, 2001.
That when Block 2 on the present Draft Plan of Subdivision becomes a valid parcel, the benefit and outlet assessments in item 3 above be apportioned from Roll Number 10-010-086 to the new parcel in accordance with Section 65 of the Act.
That the Engineer shall revise Schedule ‘C’ (Revised August 21,2001) to reflect these changes and copies be distributed to each assessed landowners.
The non-administrative costs of the Township with respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
Dated at Gravenhurst, Ontario this 2nd day of November, 2001